Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. DPO11463.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
ARONSON, J.
Manuel A. (father) appeals from the order of the juvenile court terminating his parental rights to his son, Andrew A., who is now seven years old, and his daughter, Julie A., who is now six years old. (See Welf. & Inst. Code, § 366.26; all further statutory references are to this code.) Father contends the court erred by declining to apply the statutory exception to termination where a strong parent-child bond exists. (§ 366.26, subd. (c)(1)(A).) Because substantial evidence supports the juvenile court’s conclusion father failed to establish the threshold requirement of consistent visitation (ibid.) and that father’s bond with Andrew and Julie was not so strong that severing it would outweigh the benefits of adoption, we affirm the juvenile court’s order.
I
Factual And Procedural Background
In March 2005, police arrested Andrew and Julia’s mother on charges of child endangerment, possession of a controlled substance, and possession of controlled substance paraphernalia on two separate occasions. A social worker detained five-year-old Andrew and Julie, age 4, in protective custody on allegations of general neglect. The children had been residing with mother in their paternal grandmother’s home, where they lived since birth. Father could not care for the children because he had been incarcerated since November 2004 for assault with a deadly weapon on a girlfriend. According to mother, father was absent often and the paternal grandmother had been the only stable figure in the children’s lives up to the point of detention. The social worker determined the grandmother’s home was unsafe and unsuitable for children because the floors were in dangerous disrepair, the home was filthy and cluttered with clothing and other items, and neither mother nor the grandmother stocked the kitchen with food for the children, who appeared hungry. The social worker initially transported the children to Orangewood Children’s Home, but soon moved them to their paternal aunt’s residence.
The Orange County Social Services Agency (SSA) filed a dependency petition under section 300, subdivision (b), failure to protect, and subdivision (c), no provision for support. The petition detailed father’s history of substance abuse dating back to a 1990 arrest for possession of narcotics. His criminal history included battery and assault with a deadly weapon in 2004 and a 1992 vehicular manslaughter conviction with gross negligence for driving under the influence (DUI). Father pleaded no contest to SSA’s petition, and the court declared Andrew and Julie dependents. The court provided father with reunification services, and scheduled a six-month review hearing for October 2005.
Father’s case plan called for him to stay sober and show an ability to live free from alcohol dependency, obtain and maintain a stable and suitable residence for himself and his children, obey all laws, and not use illegal drugs. SSA also required that father successfully complete a SSA-approved drug treatment program, with treatment continuing until the assigned social worker determined that treatment was no longer necessary. Father’s case plan also required that he submit twice weekly to drug and alcohol testing, and warned him SSA would treat a missed test as a positive result.
During the initial review period, Andrew exhibited behavioral problems at school. The school district retained him in kindergarten because of absences the previous year. Andrew became easily frustrated when working on schoolwork, and his teacher expressed concern about his emotional maturity and reading skills. On September 30, 2005, the school’s vice-principal called an emergency meeting to discuss Andrew’s behavior at school and possible solutions. Father did not attend.
At the sixth-month review in October 2005, the court found father’s progress on his case plan unsatisfactory. Following his release from prison on June 2, 2005, father failed to show for alcohol or drug testing appointments and he returned to reside at the paternal grandmother’s, which remained in disrepair. SSA imposed new case plan requirements consistent with the goal of reunification, including that father obtain and maintain a legal source of income, participate in counseling, and enroll in a parental education program. Despite father’s failure to comply with the case plan, the court continued reunification services, and set a 12-month review hearing for March 2006.
SSA removed the children from their paternal aunt’s care at her request because she could not leave her job early each day to assist Andrew with his educational needs. SSA moved the children back to Orangewood, then placed them at the New Alternatives Sibling Assessment Facility (SAF), and finally placed them with a nonrelated caretaker. Andrew continued to display aggressive, assaultive behavior, lashing out repeatedly at school and Orangewood. He received one-on-one staff supervision and met with a psychiatrist, but continued to display negative behavior, which included assaults on peers and staff, runaway attempts, and tantrums. Julie exhibited some negative behavior while at SAF, including problems with aggression and learning appropriate physical boundaries.
Father returned to jail briefly in October 2005 after an arrest on an outstanding warrant. Released in November 2005, he was arrested the very same day for parole violations and a traffic offense and spent the rest of the month incarcerated. In December 2005, father checked himself into the Roque Center in-patient recovery program, and later found a job as a warehouse worker.
By March 2006, at the time of the 12-month review, father had made little progress on his case plan. He failed to visit the children regularly and still had not begun drug testing. Nevertheless, the court extended the reunification period another six months.
In late March 2006, the children found a prospective adoptive home with Annette C., an experienced, 67-year-old foster parent. Andrew’s behavior improved greatly after being placed in Annette’s care. Annette first reported Andrew as “‘the worst kid I’ve ever had’” but, just two months later Andrew improved dramatically. By the five-month mark, he had won Annette’s heart with small details such as learning to brush his teeth and larger ones like taking responsibility for his behavior in public. Andrew’s teacher reported that Andrew “‘is a totally different child.’” She also reported that Andrew responded well to criticism and exhibited a more cooperative attitude. But Andrew suffered a setback after a visit with father in August 2006, urinating in toy boxes, on rugs, and behind furniture. His disruptive behavior began on the date of father’s visit and lasted three days.
Julie acted reserved around Annette at first, but soon became more at ease in her presence. She too learned to brush her teeth and grew in responsibility and affection for Annette. The social worker described Julie as “‘pretty low key and compliant.’”
At the 18-month review, in August 2006, SSA recommended the court terminate father’s parental rights. Father had taken steps to comply with the case plan, such as counseling, drug testing, going through a substance abuse program, and obtaining a legal source of income. Although he tested clean from February 2006 to October 2006, he had missed four drug tests, and still failed to visit the children regularly. The court terminated reunification services, and scheduled a hearing under section 366.26 (.26 hearing) to select a permanent plan for Andrew and Julie.
From the time of detention to the time of the .26 hearing, father’s visitation habits varied greatly. Before the 18-month review, father visited infrequently. Over the course of the dependency, father was incarcerated four times, and declined to see the children while in jail. He estimated he was incarcerated about half the time the children were out of his custody. Father did not call the children on their birthdays or Christmas because, he explained, it hurt him too much and he did not “want to deal with the pain at that time.” He had visited somewhat regularly while the children lived with their paternal aunt, but he only saw them one time at the sibling assessment facility and twice when they were moved to the home of the caretaker who preceded Annette. He also visited five times from June 2006 to August 2006.
After the 18-month review, father visited his children often. He missed one visit in September 2006, but made four others that month. He occasionally missed a visit thereafter, but continued to visit them consistently until February 2007, when authorities again incarcerated him for what father first characterized as “a speeding ticket.” Father later admitted he had been driving without a license, insurance, or registration since his DUI manslaughter conviction in 1992.
According to the social worker, the children appeared to enjoy visits with father. Although he did not visit them on their birthdays or Christmas, he brought them gifts beforehand. Father redirected the children’s negative behaviors on visits, but the social worker concluded Andrew and Julie only saw him as a parental figure during visits, not the rest of the week. They did not, for example, ask to call father during the week. The children also informed their Court Appointed Special Advocate (CASA) they did not want to live with father for any longer than two weeks or “maybe a month.” Father’s pleasant visits with the children failed, according to Andrew, to persuade him the “bugs and being hungry and . . . father hitting his girlfriend and going to jail” would not reoccur.
The social worker testified the children would not suffer detriment if the court terminated father’s parental rights because the benefit of a permanent plan would “far outweigh[]” the bond between the children and their father. The social worker recommended adoption by the current foster mother, Annette, because of the dramatic improvement shown in the children’s behavior after placement with her. Annette agreed to allow the children to continue visits with father, but at the time of the .26 hearing father had failed to follow through with the necessary meeting to establish a post-adoption contact agreement.
Andrew testified at the .26 hearing that he liked living with his foster mother Annette. He admitted he enjoyed visits with father. He understood what adoption meant, and did not want to be adopted because he “might miss [his] mom and dad.” Andrew also testified he would feel sad if he could not see his dad anymore. Julie testified she liked visiting her dad, and would be sad if she could not visit him anymore. She also missed her dad “when he doesn’t come” but explained, “I forgive it and watch T.V.”
The juvenile court found Andrew and Julie adoptable and concluded none of the statutory exceptions to termination of parental rights applied. Regarding the exception under section 366.26, subdivision (c)(1)(A), in particular, the court found father had not met the first prong — regular and consistent visitation with the children. The court noted the children had genuine affection for their father, but found “it doesn’t do the children any good to maintain or to preserve the legal relationship of parent and child if the child doesn’t get to have the contact to benefit from that.” In terminating parental rights, the court observed “the children enjoy their contact with their father and the visits with their father, but there’s very little of a parental role that’s, actually, being maintained during those visits.” Father now appeals.
II
Discussion
A. The Benefit Exception to Termination of Parental Rights Does Not Apply
1. Applicable Law and Standard of Review
Father contends the trial court erred in terminating his parental rights because the so-called “benefit exception” in section 366.26, subdivision (c)(1)(A), applied. That exception authorizes the juvenile court to avoid terminating parental rights if it finds “‘a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Once reunification services have been terminated, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The benefit exception “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Id. at p. 1348.) Instead, the exception applies only if “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.) Thus, “the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) Factors bearing on the parent-child bond include “[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Even if these factors reveal a strong bond, the parent faces a heavy burden to overcome the Legislature’s preferred permanent plan of adoption. (See § 366.26, subd. (b)(1) [identifying adoption as preferred plan]; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [“most permanent and secure alternative” affords children “the best possible opportunity to get on with the task of growing up”].) By the .26 hearing, the dependent child “is entitled to stability now, not at some hypothetical point in the future.” (In re Megan S. (2002) 104 Cal.App.4th 247, 254.) Thus, the “statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.) We review the juvenile court’s conclusion concerning whether the benefit exception applies merely for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
2. Substantial Evidence Supports the Juvenile Court’s Conclusion the Benefit Exception Did Not Apply
Father concedes his visitation was not as regular “as would have been ideal.” In fact, significant periods elapsed during which father failed to visit at all. Father was incarcerated for about half the time between the detention and the .26 hearing, and declined visits while in jail. His visits did not become regular until after reunification services were terminated, eighteen months into the dependency. He visited once in June 2006, twice in July and August 2006, once a week from September until the end of October, and twice a week from the end of October until the middle of February 2007. Between November 2006 and February 2007, father cancelled three visits, and he missed a fourth due to his reincarceration. Father’s visits became consistent in the last couple months, but they were infrequent and sporadic over the dependency period as a whole. Based on this evidence, the juvenile court could reasonably conclude father failed to maintain the regular contact necessary to invoke the benefit exception.
Even assuming father had satisfied this prong, substantial evidence supports the juvenile court’s conclusion termination of parental rights would not be detrimental to the children, and that termination was in the children’s best interest. Father bore the burden of establishing termination of his parental rights would greatly harm the children (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350), and he failed to meet that burden. It is true, as father notes, that he made impressive and positive life changes by combating his addiction. But that evidence alone does not suggest Andrew and Julie would be greatly harmed by termination of his parental rights.
In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Amber M. (2002) 103 Cal.App.4th 681 illustrate the compelling evidence necessary to establish the benefit exception. In Jerome D., the child “seemed lonely, sad, and . . . ‘the odd child out’” in his placement. (Jerome D., at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother “shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The court concluded that keeping parental rights intact would prevent Jerome’s “position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained Mother’s children.” (Id. at p. 1208.) In Amber M., the court reversed termination of parental rights where a psychologist, therapists, and the court-appointed special advocate believed a “beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption.” (In re Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a “strong primary bond” with their mother, and the younger child was “very strongly attached to her.” (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)
Father presented nothing remotely resembling the harm that would have ensued in Amber M. or Jerome D. from termination of parental rights. Father emphasizes the children testified they would be “sad” if they couldn’t see him anymore, but Andrew also explained he liked living with Annette, and there is no evidence the children had difficulty separating from father after visits. Nor did the children ask to speak with father during the week. Both children told their CASA they did not want to live with father for more than a month, and Andrew expressed fears of returning to father’s care, which his therapist worked to quell. Conversely, the children thrived after being placed with Annette, as their behavior improved greatly in the year they spent with her. The juvenile court could reasonably conclude the children’s sadness, which proved temporary in times of separation from father, would not outweigh the stability and permanency promised by adoption. We must view the evidence in the light most favorable to the juvenile court’s determination and, based on the evidence presented, the juvenile court could reasonably conclude father failed to meet his burden to show detriment outweighing the benefit of a permanent, stable home.
3. The Juvenile Court Could Reasonably Conclude Legal Guardianship or Long-Term Foster Care Was Not in the Children’s Best Interests.
Father argues maintaining parental rights through a legal guardianship or long-term foster care furthered the children’s best interests and outweighed the benefits of adoption. We disagree. Because the children’s interests in stability and permanence become paramount once reunification efforts cease (In re Marilyn H. (1993) 5 Cal.4th 295, 309), the Legislature has established adoption as the preferred permanent plan. (See § 366.26, subd. (b)(1); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 [“Adoption is the Legislature’s first choice because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker”].) Long-term foster care is the least stable of the juvenile court’s placement options. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344 [adoptions preferred over guardianship, itself “a more stable placement than foster care”]; see § 366.26, subd. (b) [listing adoption, guardianship, and long-term foster care as placement options].)
Father argues because the children’s caregiver was “a single 67-year-old woman, ensuring the children have their father in their lives . . . as an additional resource if necessary is important.” He relies on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), where the juvenile court applied the benefit exception to avoid terminating parental rights. The mother had consistently visited her four-year-old twin boys over a three-year dependency and, based on the boys’ strong bond with their mother, the court concluded continuing the parental relationship served their best interests. The juvenile court also reasoned that, in light of the health problems faced by the children’s 69-year-old grandmother and caretaker, “a good relationship between mother and children could provide additional security for the children, ‘if need be’. . . .” (Id. at p. 1538.) Brandon C. is distinguishable.
In Brandon C., the grandmother’s health problems required her to take medication for angina, high blood pressure, and thyroid issues. (Brandon C., supra, 71 Cal.App.4th at p. 1533.) Based on the grandmother’s age and health challenges, the mother objected to the permanent plan identifying the grandmother as the prospective adoptive parent. Notably, the grandmother herself initially believed she was too old to adopt and care for toddler twin boys.
Here, in contrast, the record amply demonstrates Annette’s ability to meet Andrew’s and Julie’s needs, especially Andrew’s educational challenges, and the record discloses no medical issues or concerns regarding Annette’s health. Father never objected to the children’s placement with Annette because of her age or health. He therefore failed to meet his burden to develop facts supporting his position. And in an era of increased longevity and healthy living, there is no reason to assume Annette cannot provide a loving home for the children for decades to come. Moreover, Andrew and Julie, already eight and seven years old respectively, will reach adulthood much sooner than the four-year-olds in Brandon C. Finally, Brandon C. is inapposite because the juvenile court determined there that the mother independently satisfied both prongs of the benefit exception, wholly apart from any consideration of the grandmother’s age or health. Because substantial evidence supports, as discussed, the juvenile court’s conclusion no exception to termination of parental rights applied, the Legislature’s best interests determination concerning the stability and permanency of adoption required the juvenile court to select adoption as the children’s permanent plan. Father’s contrary argument is therefore without merit.
III
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.